American Association of University Professors et al v. Rubio et al

UNIT ED STATES 	DISTRICT 	COURT
DISTRICT 	OF MASSACHUSETTS
)
AMERICAN 	ASSOCIATION 	OF 	)
UNIVERSITY 	PROFESSORS, 	)
AMERICAN 	ASSOCIATION 	OF 	)
UNIVERSITY 	PROFESSORS 	-- 	HARVARD 	)
FACULTY 	CHAPTER, 	)
AMERICAN 	ASSOCIATION 	OF 	)
UNIVERSITY 	PROFESSORS 	AT 	NEW 	)
YORK 	UNIVERSITY, 	)
RUTGERS 	AMER I CAN 	ASSOCIATION 	OF 	)
UNIVERSITY 	PROFESSORS-AMERICAN 	)
FEDERATION 	OF 	TEACHERS , 	and 	)
MIDDLE 	EAST 	STUDIES 	ASSOCIATION , 	)
)
Plaintiffs, 	)
V . 	)
)
MARCO 	RUBIO , 	in 	his 	official 	)
capacity 	as 	Secretary 	of 	State, 	)
and 	the 	DEPARTMENT 	OF 	STATE , 	)
KRISTI 	NOEM , 	in 	her 	official 	)
capacity 	as 	Secretary 	of 	Homeland 	)
Security , 	and 	the 	)
DEPARTMENT 	OF HOM ELAND 	SECURITY , 	)
TODD 	LYONS, 	in 	his 	official 	)
capacity 	as 	Acting 	Director 	of 	)
U.S. 	Immigration 	and 	)
Customs 	Enforcement , 	)
DONALD 	J . 	TRUMP, 	in 	his 	official 	)
Capacity 	as 	President 	of 	)
the 	United 	States , 	and 	)
UNITED 	STATES 	OF AMERICA , 	)
)
Defendants . 	)
_ __________________ )
YOUNG, 	D. J .
MEMORANDUM AND 	ORDER
CIVIL 	ACTION 	NO .
25 - 10685-WGY
January 	22 , 	2026
On 	November 	10 , 	2025 , 	the 	Boston 	Globe 	Media 	Partners, 	LLC,
filed 	a 	Motion 	to 	Intervene 	and 	for 	Access 	to 	Trial 	Exhib i ts 	and
Case 1:25-cv-10685-WGY Document 314 Filed 01/22/26 Page 1 of 5

Provisionally 	Sealed 	Pleadings . 	ECF 	No. 	275. 	The 	New 	York
Times 	Company 	filed 	a 	Motion 	to 	Intervene 	and 	Join 	that 	Motion
on 	November 	24, 	2025. 	ECF 	No . 	283 . 	On 	December 	4 , 	2025, 	the
Intercept 	Media 	and 	Center 	for 	Investigative 	Reporting 	filed 	a
Motion 	to 	Intervene 	and 	for 	Access 	to 	Judicial 	Records. 	ECF 	No.
288. 	The 	Government 	opposed 	these 	motions . 	ECF 	No. 	296. 	This
Court 	granted 	the 	Motions 	to 	Intervene 	and maintained 	the
sealing 	of 	documents 	to 	remain 	in 	effect 	until 	judgement
entered. 	ECF No . 	306. 	Now 	that 	judgement 	has 	entered , 	the
Court 	GRANTS 	the 	remainder 	of 	the 	aforementioned 	Motions 	(ECF
Nos . 	275 , 	283, 	288) 	as 	to 	the 	unsealing 	of 	the 	exhibits 	upon
which 	the 	Court 	relied 	upon 	in 	its 	Findings 	of 	Fact 	and 	Rulings
of 	Law 	(ECF 	No . 	261) 	and 	the 	requested 	demonstrative 	exhibit
marked 	as 	HO . 	As 	described 	at 	the 	Hearing 	on 	January 	15 , 	2026,
the 	Government 	has 	been 	permitted 	to 	make 	certain 	redactions 	of
individuals ' 	personal 	identifiable 	information.
of 	Remedies 	Hearing , 	ECF 	No. 	310 , 	40:6-14.
I. 	Deliberative 	Process 	Privilege
See 	Transcript
Having 	ruled 	orally 	on 	the 	Government's 	claims 	of 	Attorney-
Client 	Privilege 	(See 	ECF 	No. 	242, 	July 	14 , 	2025, 	Tr. 	at 	18:3 -
10 ; 	32 : 20-24 ; 	46 : 9-10; 	59 : 3-13) 	and 	law 	enforcement 	privilege ,
(see 	id. 	at 	37:8 - 38:8), 	the 	Court 	now 	turns 	to 	its 	unfinished
business 	concerning 	claims 	of 	the 	Deliberative 	Process
Privilege . 	See 	Defendant's 	Response 	to 	the 	Motions 	to 	Intervene
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and 	to 	Unseal 	Pleadings 	and 	Exhibits 	at 	2 , 	ECF 	No. 	296 . 	The
Court 	rules 	that 	the 	Deliberative 	Process 	Privilege 	does 	not
apply 	to 	the 	exhibits 	properly 	introduced 	at 	trial 	and 	relied
upon 	by 	this 	Court 	in 	its 	findings.
The 	First 	Circ ui t 	stated 	in 	Texaco 	Puerto 	Rico ,
Inc. 	v . 	Dep't 	of 	Consumer 	Affs ., 	60 	F . 3d 	867 , 	885 	(1st 	Cir .
19 95) , 	that 	"[ t ]he 	[deliberative 	process ] 	privilege 	' is 	a
qualified 	one ,' 	FTC 	v . 	Warner 	Communicat i ons 	Inc. , 	742 	F . 2d
1156, 	1161 	(9th 	Cir . 	1984), 	and 	'i s 	not 	absolute. ' 	First 	Eastern
Corp . 	v . 	Mainwaring, 	21 	F.3d 	465, 	468 	n. 	5 	(D.C. 	Cir . 	1994) ."
The 	First 	Circuit 	then 	went 	on 	to 	state 	that 	"[ a ] t 	bottom, 	then ,
the 	deliberative 	process 	privilege 	is 	' a 	discretionary 	one .'"
Te xaco , 	60 	F.3d 	at 	885 	(citing 	In 	re 	Franklin 	Nat'l 	Bank 	Sec .
Litig., 	478 	F. 	Supp . 	577 , 	582 	(E.D.N.Y. 	1979)).
Since 	the 	Deliberative 	Process 	Privilege 	i s 	not 	absolute ,
unlike 	the 	attorney - c li ent 	pr i vilege , 	" an 	inquiring 	court 	should
consider , 	among 	other 	th in gs , 	the 	interests 	of 	the 	liti gants ,
society ' s 	interest 	in 	the 	accuracy 	and 	integrity 	of 	factfinding,
and 	the 	public ' s 	interest 	in 	honest, 	effective 	government ."
Texaco, 	60 	F.3d 	at 	885 .
The 	D. C. 	Circuit 	largely 	agrees 	with 	this 	logic, 	ruling
that 	t h e 	Deliberative 	Process 	Privilege 	"m ay 	be 	overridden 	when
necessary 	to. 	' shed 	light 	on 	alleged 	government
ma l feasance. '" 	In 	re 	Subpoena 	Served 	Upon 	Comptroller 	of
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Currency, 	& Sec ' y 	of 	Bd . 	of 	Governors 	of 	Fed. 	Rsrv. 	Sys. , 	967
F.2d 	630, 	634 	(D.C. 	Cir . 	1992) 	(quoting 	In 	re 	Franklin , 	478 	F.
Supp . 	at 	582) .
The 	D.C. 	Circuit 	has 	further 	explained 	that 	" where 	there 	is
reason 	to 	believe 	the 	documents 	sought 	may 	shed 	light 	on
government 	misconduct, 	' the 	[deliberative 	process] 	privilege 	is
routinely 	denied,' 	on 	the 	grounds 	that 	shielding 	internal
government 	deliberations 	in 	this 	context 	does 	not 	serve 	'the
public ' s 	interest 	in 	honest , 	effective 	government .'" 	In 	re
Sealed Case , 	121 	F.3d 	729, 	738 	(D . C . 	Cir . 	1997) 	(quoting 	Texaco,
60 	F . 3d 	at 	885) . 	So 	too 	here .
Here, 	the 	documents 	sought 	by 	In tervenors 	shed 	light 	on 	the
government 	misconduct 	this 	Court 	found 	as 	a 	result 	of 	a 	nine-day
bench 	trial, 	which 	concluded 	with 	the 	finding 	that:
[T]his 	Court 	finds 	as 	fact 	and 	concludes 	as 	matter
of 	law 	that 	Secretaries Noem and 	Rubio and 	their 	several
agents 	and 	subordinates 	acted 	in 	concert 	to 	misuse 	the
sweeping 	powers 	of 	their 	respective 	offices 	to 	target
non-citizen 	pro-Palestinians 	for 	deportation 	primarily
on 	account 	of 	their 	First 	Amendment 	protected 	political
speech . 	They 	did 	so 	in 	order 	to 	str ike 	fear 	into
similarly 	situated 	non-citizen 	pro-Palestinian
individuals, 	pro-actively 	(and 	effectively) 	curbing
lawful 	pro-Palestinian 	speech 	and 	int entional ly 	denying
such 	indi victuals 	( in c luding 	the 	plaintiffs 	here) 	the
freedom 	of 	speech 	that 	is 	their 	right. 	Moreover, 	the
effect 	of 	these 	targeted 	deportation 	proceedings
continues 	unconstitutionally 	to 	chill 	freedom 	of 	speech
to 	this 	day.
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.. 	.. . 	,.
Am . 	Ass ' n 	of 	Univ . 	Professors 	v . 	Rubio , 	802 	F. 	Supp . 	3d
120 , 	194 	(D . 	Mass . 	2025) . 	This 	finding 	substantiates 	the
standards 	offered 	in 	prior 	deliberative 	process 	privilege
litigation 	- 	that 	there 	is 	"reason 	t o 	believe 	the 	documents
sought 	may 	shed 	light 	on 	government 	misconduct ," 	or 	" reas o n 	to
believe 	government 	misconduct 	has 	occurred ." 	In 	re 	Sealed 	Case ,
121 	F . 3d 	at 	738 , 	746 	(citing 	Texaco , 	60 	F . 3d . 	at 	885) ; 	see
generally 	Edward 	J . 	Imwinkelried , 	The 	Government 	Misconduct
Exception 	to 	the 	Deliberative 	Process 	Privilege, 	65 	S . D. 	L . 	RE V.
76 , 	90 	(2020) .
In 	conclusion , 	the 	Court 	GRANTS 	the 	remaining 	Motions , 	ECF
Nos . 	275 , 	283 , 	288 , 	and 	unseals 	the 	exhibits 	relied 	u pon 	by 	the
Court , 	as 	we ll 	as 	demonstrative 	exhibit 	" HO ."
SO ORDERED.
DISTRICT
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